Ward v. Louisiana Wild Life and Fisheries Commission

• Citation: 224 F. Supp. 252
• Decision Date: 03 December 1963
• Docket Number: Civ. A. No. 8358.
• Parties: Davis S. WARD et al. v. LOUISIANA WILD LIFE AND FISHERIES COMMISSION.
• Court: U.S. District Court — Eastern District of Louisiana

224 F. Supp. 252

Davis S. WARD et al. v. LOUISIANA WILD LIFE AND FISHERIES COMMISSION.

Civ. A. No. 8358.

United States District Court E. D. Louisiana, New Orleans Division.

December 3, 1963.

J. Mort Walker, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for plaintiffs.

Harry V. Booth, Shreveport, La., Leo R. Wertheimer, Ellis Irwin, New Orleans, La., Morris Shapiro, Alexandria, La., Jack P. F. Gremillion, Atty. Gen., State of Louisiana, John E. Jackson, Jr., Asst. Atty. Gen., State of Louisiana, Thompson L. Clarke, St. Joseph, La., Harry H. Howard, Wood H. Thompson (Trial Attorney), Monroe, La., Warren M. Simon, New Orleans, La., for defendant.

Civ. A. No. 8358, Division "C".

WEST, District Judge.

On November 4, 1911, by authentic act passed before a Notary Public and two witnesses, grantors, Charles Willis Ward and Edward Avery McIlhenny, did "give, grant, donate, transfer, set over, assign, abandon and deliver to" the grantee, "The Board of Commissioners for the Protection of Birds, Game and Fish, a body authorized by the laws of the State of Louisiana to control birds, game and fish, of said State as evidenced by the acts of the Legislature thereof" certain lands located in the Parish of Vermillion, Louisiana. This authentic act, hereinafter sometimes referred to as the act of donation, further provided that it was a condition of the donation that the donee secure from the State of Louisiana an act of the Legislature dedicating the lands donated as a game refuge or reserve, and that subject to all other conditions contained therein, the donor would furnish a title to the land in "fee simple" to the State of Louisiana. Among the many other conditions contained in the act of donation was one reserving to the donors "all deposits of minerals, gas, oils, salt and phosphates under the surface of the lands", together with the right to develop same, and it was then provided that "The said donee, and its successors, as the same may be created by the State of Louisiana, and the State of Louisiana shall not sell the lands so donated or devote them to any other purposes than a Refuge or Reserve for wild life. * * *."

On September 15, 1958, the original donors having since died, petitioners herein, David S. Ward, Alma Ward Bristol, Kathryn Chase Rowbotham, Harrison F. Rowbotham, Jr., and Harrison F. Rowbotham, as administrator of the estate of his minor children, Stephanie Chase Rowbotham, Meredith Blake Rowbotham, and Gardner Chase Rowbotham, as the sole heirs of Charles Willis Ward, and Rosemary McIlhenny Osborn, as one of the heirs of Edward Avery McIlhenny, brought this suit against the Louisiana Wild Life and Fisheries Commission, one of the several successors to the Board of Commissioners for the Protection of Birds, Game and Fish, seeking a declaratory judgment under 28 U.S.C.A. § 2201 et seq., declaring that the "defendant has no present rights under the aforesaid instrument of November 4, 1911, and more particularly that the defendant has no right, title, interest or claim of ownership in and to the property of the late Charles Willis Ward and the late Edward Avery McIlhenny, described in said instrument of November 4, 1911." Petitioners' claim is based upon the allegations that both the defendant and the State of Louisiana have failed to comply with the conditions contained in the act of donation, and that hence, title to the land was never conveyed to either the Board of Commissioners for the Protection of Birds, Game and Fish, or to the State of Louisiana. They contend that the instrument in question was not an act of donation, but merely a "commitment to convey the land described therein to the State of Louisiana at some future time when the conditions enumerated therein had been complied with, * * *."

Defendant, in essence, contends that the act of donation was a valid donation and that the lands in question were validly donated thereby to the State of Louisiana or alternatively that they were validly donated to the Board of Commissioners for the Protection of Birds, Game and Fish, which Commission was but an agency of the State of Louisiana, who held said lands solely for the State of Louisiana.

The petitioners who are the heirs of Ward represent collectively a claim to a three-fourths interest in the property involved, and the petitioner who is an heir of McIlhenny represents a claim to a one-twelfth interest in the property. Thus, only ten-twelfths of the alleged ownership in the property is represented by petitioners in this suit. The remaining two-twelfths interest is not represented. The reason for this interest not being represented is quite apparent inasmuch as the possible owners of this two-twelfths interest are citizens of the State of Louisiana, and thus, if joined as plaintiffs in this suit, would destroy the required diversity of citizenship necessary to allow this Court to retain jurisdiction.

On October 30, 1958, the respondent, Louisiana Wild Life and Fisheries Commission, through the Attorney General for the State of Louisiana, filed a motion to dismiss (1) for lack of indispensable parties plaintiff and defendant, (2) for lack of jurisdiction, and (3) for failure to state a claim upon which relief can be granted. It is respondent's contention that the alleged owners of the two-twelfths interest, Mrs. Leila McIlhenny Brown and Mrs. Pauline McIlhenny Simmons, not herein represented, are indispensable parties plaintiff, and that also, the MAWA Petroleum Company, to whom all of the petitioners, together with Mrs. Brown and Mrs. Simmons, executed an oil and gas lease on the property involved, is an indispensable party plaintiff. MAWA is also a citizen of the State of Louisiana. Respondent further contends that one James R. Mary is an indispensable party plaintiff in that he acquired, from the heirs of Charles Ward, an undivided three-sixteenths interest in the oil, gas and mineral rights and mineral substances lying in, upon, and under the land in question. Mr. Mary is also a citizen of the State of Louisiana.

Insofar as the parties defendant are concerned, respondent contends that the proper party defendant is the State of Louisiana rather than the Louisiana Wild Life and Fisheries Commission, which it alleges is only an agency of the State of Louisiana and not amenable to suit. Respondent further alleges that even if it is authorized by the State to be sued, such authorization could only extend to suits filed in Courts of the State of Louisiana, and could not extend to suits filed in Federal Courts. These motions were heard before this Court, as then constituted, on November 12, 1958, and on November 17, 1958, all of defendant's motions to dismiss were denied. Subsequently this case was transferred to another division of this Court, where the motions were again urged, and on September 16, 1959, denied by the Court, as then constituted, without assigning reasons therefor. Thereafter, this case was transferred to this division of the Court where all of these motions of respondent have again been re-urged. Petitioners, in return, have filed and urged a motion to strike all portions of respondent's motions which have previously been heard and decided by the Court. Arguments have been heard by the Court as presently constituted, and extensive briefs have been filed and thoroughly studied. It is now the considered opinion of the Court that respondent's motion to dismiss should be granted for the reasons hereinafter set forth.

A United States district judge is most reluctant to reverse or change a ruling or order of another district judge, sitting on the same case, in the same court, and will do so only for the most compelling reasons. However, the power and authority of a judge to overrule a previous decision of a prior judge, sitting on the same case in the same court, is well established. Dictograph Products Company v. Sonotone Corp., 230 F.2d 131 (C.A. 2 1956); In re Walton Hotel Co., 116 F.2d 110 (C.A. 7 1940). The United States Supreme Court has rejected a doctrine of disability at self correction, Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604 (1940), and in this instance, this Court feels compelled to correct what it believes to be an erroneous ruling previously issued herein.

I. DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO JOIN INDISPENSABLE PARTIES PLAINTIFF.

The alleged owners of a combined ten-twelfths interest in and to the property involved herein have joined as parties plaintiff in the suit. The alleged owners of the remaining two-twelfths interest have not joined as plaintiffs. Defendant contends that the alleged owners of this remaining two-twelfths interest must be joined as indispensable parties plaintiff. Secondly, all of the plaintiffs, together with the alleged owners of the remaining two-twelfths interest, executed an oil and gas lease on the property to the MAWA Petroleum Company, and one James R. Mary acquired from the heirs of Charles Ward an undivided one-fourth of an undivided three-fourths interest in and to all of the oil, gas and mineral rights and mineral substances lying in, upon, or under the land in question. Defendant contends that both MAWA Petroleum Company and James R. Mary are therefore indispensable parties plaintiff to this suit. It is conceded by all parties that Mrs. Leila McIlhenny Brown and Mrs. Pauline McIlhenny Simmons, the alleged owners of the remaining two-twelfths interest in the land itself, are both citizens of Louisiana, and that both MAWA Petroleum Company and James R. Mary are also citizens of the State of Louisiana, and thus, to join any of these parties as plaintiffs would destroy the diversity of citizenship necessary to confer jurisdiction upon this Court. Thus, in this case, the question of indispensability of parties is inextricably bound with the question of jurisdiction. Indispensability of parties is to be determined on practical considerations.

"An indispensable p

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